Viking Jurisprudence
Part 2

by
D. J. Connolly

 

 

In 1953, President Eisenhower nominated California Governor Earl Warren as Chief Justice of the Supreme Court.  Racial animosity toward Japanese-Americans had been a fixture in California politics during Warren's long career in the state.  And Earl had played the race card when it he found it useful.  During the first few years of World War II, he advanced his career by promoting the internment of thousands of Japanese-Americans in concentration camps. [1]

Warren, therefore, was a good choice to lead the Supreme Court, a racist institution if there ever was one.  For the past century, the Court had been America's primary agent of African-American oppression.  In the 1857 Dred Scott case, the Court had opined that African Americans were "beings of an inferior order and altogether unfit to associate with the white race," and "had no rights which the white man was bound to respect."  That outrageous opinion was followed by, indeed helped cause, the Civil War. [2]

After the War ended, "We the People" ratified the 14th Amendment at least in part to purge the infamous Dred Scott decision from the law.  Congress wanted to protect the Amendment from the stealth legislators on the Court.  So it included Section 5 which said, "Congress shall have power to enforce, by appropriate legislation, the provisions of this article."  You will not be surprised to learn that our Constitution is not perfect.  The folks who wrote it made it too hard for "We the People" to get rid of renegade judicial employees.  It takes a two-thirds vote in the Senate to convict and remove a renegade judge in an impeachment proceeding.  Senators only have to run for reelection once every six years.  And they're all convinced that "We the People" are too stupid to remember what they did last year.  As a result, no white collar criminal on the U. S. Supreme Court has ever been impeached and removed from office.

But I digress.  Between 1866 and 1875 Congress passed four laws to "enforce" the 14th Amendment's "provisions."  White collar crimanals on the Supreme Court found key parts of all four enforcement laws distasteful; so they contrived various pretexts to declare them unconstitutional.  Consequently, the slaves that American boys expended buckets of blood to free were left without effective federal protection from their former masters. [3]

As late as 1945, in Screws v. United States, the Court ruled that it was unconstitutional for the United States to punish a Georgia sheriff who, acting out of a personal grudge and in his official capacity as sheriff, had murdered an innocent black man and faced no punishment from his own state.  By 1954, Southern Negroes had suffered eight decades of unjust and oppressive state and local Jim Crow laws.  To a large degree, that injustice was the Supreme Court's fault. [3]

However, by the early 1950's, racism was going out of style among our political elites.  Following the teachings of Machiavelli, the Supreme Court has always paid close attention to what the "great ones" were thinking.  So the Court decided it was time to change course.  It's opportunity came in 1954 with Brown v. Topeka. [4]

A young black girl named Linda Brown had sued the Topeka Kansas Board of Education.  It required her to ride a bus two miles to a public school.  She wanted to simply walk to a school four blocks from home, the same one her white neighbors attended.  Linda's lawyers argued that the 14th Amendment says the states must offer "equal protection of the laws" to "all persons."  The "persons" our founders wrote the Amendment to protect were African Americans.  And two miles was hardly equal to four blocks.  It seemed that Linda had a pretty good case.

The Topeka Board of Education's lawyers responded with proof that the framers and ratifiers of the 14th Amendment did not intend it to affect public schools.  The framers had made that clear in many speeches.  Most of the states (including Northern states) had segregated schools when they ratified the Amendment and maintained them for many years thereafter.  The same session of Congress that voted to adopt the Amendment also voted to keep the Washington, D.C. schools segregated.  The Senate, at that time, had separate black and white sections in its visitor's gallery. [5]

The Topeka Board's lawyers were too delicate to make an issue of the four laws Congress had passed to enforce the 14th Amendment.  It would have been tactless to remind the Court of its earlier fraudulent rulings which had caused eight decades of racial injustice.  Nevertheless, those four laws, which ran in total to over 8000 words, contained everything the framers intended the Fourteenth Amendment to cover.  There was no mention of school integration. [6]

By 1954, a political consensus was inclined to abandon the racist policies of the past three-quarters of a century.  But the framers clearly did not intend the 14th Amendment to affect public schools, at least not without further action by Congress.  And Congress had never taken the necessary action.  The Warren Court, therefore, resolved to defy the Constitution and act in Congress's place; it seemed like good politics.  So it ruled that what the framers of the 14th Amendment intended didn't matter.  It actually had the gall to write in the Brown opinion: "In approaching this problem, we cannot turn the clock back to 1868 when the (14th) Amendment was adopted, . . ."  The Court said, in effect, 'the Constitution is wrong and we're going to fix it.' [7]
 

A CULTURE OF LEARNING

Back in 1941, a young woman named Evelyn B. Granville graduated from the Washington, D.C. public schools.  Ms. Granville went on to receive one of the first doctorates in mathematics ever held by a black woman.  After an eminent career in our nation's space program, she went home, in early 1999, to attend a ceremony in her honor.   Dr. Granville was quoted as praising the D.C. "colored schools" of her youth for their "culture of learning" and for having "well trained and dedicated teachers." [8]

In 1954, along with Brown v. Topeka, the Warren Court decided Bolling v. Sharpe, which concerned those same Washington, D.C. schools.   You will recall that the framers of the 14th Amendment kept them segregated during the same session of Congress that adopted the 14th Amendment.  Congress had never changed that policy.

It wasn't feasible for the ayatollahs on the Warren Court to dodge the fact that the 14th Amendment only applied to the states (that was clearly stated within the Amendment itself).  So they needed a different story line to justify orders to integrate the Washington schools.  The one they picked was ludicrous.  They said the due process clause of the Fifth Amendment also forbade segregated schools.  The Supreme Court had used the same story line to justify the Dred Scott opinion in which it concluded that African-Americans "had no rights which the white man was bound to respect."

Middle class Whites in Washington responded to the actions of a lawless Supreme Court by voting with their feet.  Within three years, Washington became the first majority black city in America.  The people who remained were unable to sustain the quality of life in the city, much less the quality of the public schools.  The excellent D.C. public schools of Dr. Granville's youth are now worse than those of many third world nations. [9]
 

ALL DELIBERATE SPEED

Now let's briefly review the Brown ruling's impact on Southern public school children.  To get all nine justices on board, Earl Warren had agreed to hand down a ruling with no deadline for compliance; Linda Brown was denied relief.  In effect, the Warren Court refused to decide the case before it.  Instead, it produced a judicial policy mandate, ordering that public schools should admit students without regard to race "with all deliberate speed."

That mandate had no effect on southern school segregation.  By 1964, a decade after the Brown decision, ninety-nine percent of Southern black children still went to segregated public schools.  That year Congress passed the Civil Rights Act of 1964.  In addition to effective measures to enforce public school integration, it contained many of the same features the Court had declared unconstitutional almost a century earlier.  But no one was ungracious enough to mention that.  Legitimate action by Congress was a lot more effective than a fraudulent opinion by the Supreme Court.  By 1972, ninety percent of Southern black children attended integrated schools. [10]

If there was ever an excuse for the Court's brazen usurpation of legislative power in the Brown case, it vanished when Congress passed the Civil Rights Act of 1964.  However, at this point the Supreme Court thought its prestige was on the line.  Machiavelli had advised his students that it was dangerous for a prince to appear timid or irresolute.  He had also advised that it was better to be feared than loved.  The Court has followed a long-standing practice of adhering to Machiavelli's advice.  So fourteen years after the Brown case, and one hundred years after the Fourteenth Amendment was ratified, the Warren Court trumped the 1964 Civil Rights Act and ruled that the 14th Amendment not only allowed racial bias in school assignment, but demanded it. [11]

In 1968 the Court accepted and heard a case involving a Southern school district that had adopted a "freedom-of-choice" plan the year following enactment of the 1964 Act.  The plan allowed black and white families to pick their children's schools and provided transportation to whichever school they chose.  After the plan was in operation for almost three years, only 15 percent of the African American children were attending an integrated school.  However, measured against the complete absence of progress following the Brown decision, one might say the "freedom-of-choice" plan was moderately successful. [12]

However, by this time the Court no longer wanted public schools to admit students without regard to race.  Now it took the position that the laws must coerce both Blacks and Whites in order to serve a liberal social theory; "freedom-of-choice" was declared unconstitutional.  The Court demanded that both Whites and Blacks be bussed to achieve a numerical quota.  Thus was born the two-decade-long catastrophe of massive forced busing.  Earl Warren was still a racist, and he had lots of company.  The opinion was unanimous. [13]
 

A FALSE PROMISE

In 1947 Branch Rickey and Jackie Robinson integrated major league baseball.  In 1948 President Harry Truman integrated the U. S. Armed Forces.  Both actions were legitimate and highly successful.  As I write this, in the summer of 2003, African Americans dominate professional sports in America, even elite sports like golf and tennis.  And Blacks hold a disproportionate share of leadership positions in our armed forces.  So there's no doubt American institutions can be integrated by honest and legitimate measures [14].

In 1954, nine government employees in black robes wanted to grab some of that action for themselves.   So, with the approval of America's political elites, they trashed the Constitution in service of a social ideal, the promise of educational equality for African Americans.  That 1954 action still enjoys near unanimous approval by our citizens who have been taught that it was a heroic return to the cherished values of our founders.  But it was dishonest and illigitimate; and it was a miserable failure.

That unconstitutional power grab created precedents for a half-century of rule by judicial decree.  Even conservative intellectuals honor Brown v. Topeka, setting themselves the hopeless task of articulating a coherent defense against judicial tyranny while applauding its modern seminal event.  Nobody wants to risk being accused of opposing the promised benefit; equal educations for African American children.

America has paid a very high price for that benefit; our Constitution has been degraded to the status of an empty symbol used only to provide cover for rule by judicial fiat.   But the promised benefit never came.  Instead we got three catastrophic decades during which federal judges destroyed America's urban public schools.   African American children suffered the most from that destruction.  Have you noticed that our public schools are integrated?  Do you suppose that Black children get better educations in our public schools than they got in 1954?

In early 2001, the Harvard University Civil Rights Project reported that a black child in U. S. public schools is three times more likely than a white child to be labeled "mentally retarded."  Some equal educations [15].

Also in early 2001, the U. S. Department of Education published the results of a study comparing the math and science achievements of American school children with those of school children in 37 other nations.  Commentators expressed great concern over the results.  We came in 19th in math, and 18th in science [16].

A professor named David C. Berliner wrote an article for the Washington Post pointing out a tragic underlying truth in the results.  If only the scores of American Whites were counted, we'd have come in 4th in science, rather than 18th.  However, if only the scores of American Blacks were counted, we'd have come in dead last, behind a long list of third world nations [17].

As it says in the Bible, "a corrupt tree (cannot) bring forth good fruit" [18].
 

NOTES & CITATIONS

1.  See the online essay Viking Jurisprudence.

2.  See the online essay A Scam is Born.  A Transcript of the Dred Scott opinion can be found at the Touro Law Center web site.

3.  The text of the four 14th Amendment Enforcement Acts can be found on the Internet.  See also the online essays Congress Shall Not Have the Power and Racism in the Court.

4.  The observation that the Court follows the advice of Machiavelli is a recurring theme in essays on this web site and in the Grand Larceny: An Unexpurgated History of the Supreme Court.

5.  Edward Lazarus, a legal scholar and author, touched on this point in his 1998 expose of politics and bias in the Supreme Court.   See his page 243.  Raoul Berger documented the declared intention of the framers of the Fourteenth Amendment with respect to public schools in his Government by Judiciary.  See his Chapter 7.  Also consult Berger for the primary sources of the foregoing statements.

6.  The text of the four 14th Amendment Enforcement Acts can be found on the Internet.

7.  The Brown opinion can be found at a Touro Law Center Web Site.

9.   See "When Schools Made a Difference," by Courtland Milloy, Washington Post, page C01, Feb. 21, 1999.

10. See the online essays A Scam is Born and Evolution of a Scam.

9. See "The Year the Whites Left the City" by D'Vera Cohn, Washington Post Staff Writer, The Washington Post, July 19, 1999, page A01.  For Washington, D.C. public school performance data see the American Legislative Exchange Council's, "Report Card on American Education, 1994."  I found a summary of the report in a 1996 Heritage Foundation paper, "Issues ‘96: The Candidate's Briefing Book," by Denis P. Doyle.  See also the TIMSS-R report described several paragraphs below.

10. See Epstein, Lee (1994), Table 9-4, page 621.   Epstein cited Gerald N. Rosenberg, The Hollow Hope, U. Chicago Press, 1991.

11. According to Machiavelli's Chapter XIX, "a prince is contemptible when he is counted effeminate . . . and irresolute; and of this he ought to be as careful as of a rock in the sea." Machiavelli also concluded that, whenever a prince had to choose one or the other, it was better to be feared than loved.  See his Chapter XVII.

12. The case was Green v. County School Board of New Kent County.  A transcript of the opinion can be found on the Internet.  See also Graglia, pp 67-75.

13. If you think the word "catastrophe" is a bit too strong, take a look at the online essay Twenty-Million Ruined Educations.

14. See Twenty-Million Ruined Educations.

15. The report of the Harvard University Civil Rights Project was discussed by Chris Sheridan in the Cleveland Plain Dealer, March 11, 2001, page 2-G

16. "Third International Math and Science Study - Repeat (TIMSS-R)," A publication of the National Center for Education Statistics. Its Web Page can be found at http://nces.ed.gov/.

17. "Our Schools vs. Theirs: Averages That Hide The True Extremes," by David C. Berliner, Washington Post, Page B03, January 28, 2001.

18. See the King James Bible, Matthew 7:18.

 

For publication data on works cited, check the Bibliography

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D. J. Connolly.